Employee References

ACAS has this month released some new guidance for employers on providing references for job applicants.

In general, an employer can choose whether to provide a reference or not and what information to include in that reference. Only certain industries such as those regulated by the Financial Services Authority are required to give a reference by law and employers must only seek a reference from a job applicant’s current employer with their permission.

If the employer decides or is obliged to provide a reference, it must be a true, accurate and fair reflection of the job applicant and it should not include irrelevant personal information.

The ACAS guidelines confirm that a reference can include; –

basic facts about the job applicant, like employment dates and job descriptions

answers to questions that the potential employer has specifically asked about the job applicant that are not usually given as basic facts, like absence levels and confirming the reason for leaving

details about the job applicant’s skills and abilities

details about the job applicant’s character, strengths and weaknesses relating to the suitability for the role they have applied for

References must not include misleading or inaccurate information and those giving a reference should avoid giving subjective or unsubstantiated opinions.

Problems can arise when a references appears to demonstrate that the job applicant has not properly described his or her role accurately, that a job applicant is not suitable for the role they are applying for or that the job applicant doesn’t have enough experience of relevant responsibilities. Similarly, the reference may cite different reasons for leaving employment than those disclosed by the job applicant.

The ACAS guidelines suggest that in these circumstances, potential employers should remember that the reference may be inaccurate, particularly in suggesting suitability for a new role or reasons for leaving the employment. In these circumstances it is advised that the potential employer speak with the job applicant directly regarding any discrepancies in this regard and consider whether a probationary period would be appropriate in the circumstances.

Under GDPR, a job applicant who is unhappy with a reference provided about them can request that the author of a reference provide a copy of any reference sent to a new employer.

Furthermore, a job applicant may be able to claim damages in a court if they can show that the information given in a reference was misleading or inaccurate and that they have suffered a loss such as withdrawal of a job offer.

Slater Heelis LLP is a limited liability partnership registered in England and Wales with registered number OC371694 and whose registered office is at Lloyds Bank Buildings, 16 School Road, Sale, Cheshire M33 7XP.
Authorised and regulated by the Solicitors Regulation Authority and governed by the SRA Code of Conduct (details can be found at www.sra.org.uk/handbook). Our VAT number is 727 0283 44.